This appeal by the Golden Industries Employees' Union is directed against the order of the learned IIIrd Labour Court, given on 17th January 1980, dismissing the appellant Union's application under section 34, I. R. O., praying that directions be issued to the respondent-Company to declare 24th March, 1979, as substituted holiday in lieu of 23rd March 1979, as the latter date happened to fall on Friday which even otherwise is a weekly holiday. The ground which weighed with the learned Labour Court in dismissing the appellant Union's application was that substitution of holidays was only to be allowed in those cases where the Government itself notifies substituted holidays and since no notification for a sub--stituted holiday was issued in respect of 23rd March 1979, the workmen of the respondent-Company could not rightly claim a substituted holiday.
2. Mr. Shafiq Qureshi, the learned counsel for the appellant-Union, assailed the impugned order of the learned Labour Court on the ground that the claim of the appellant Union for substituted holiday, in case a holiday in the respondent-Company whether declared by it or declared by law, fell on a weekly holiday, was based on invariable custom and practice in the respondent Company.
In support of his contention, the learned counsel referred me to the statement, showing public holidays which fell on weekly holidays and substituted holidays which were given in lieu thereof in the respondent-Company, which is annexed to the appellant Union's application under section 34, I.R.O. That statement covers the period from 1960 up to 1968 and cites 25 instances where sub-- stituted holidays were given by the respondent-Company in lieu of public holidays or holidays declared by the Company which fell on weekly holi--days. The respondent-Company did not file any statement m this behalf in the Labour Court. However, at the appellate stage, Mr. Masood Mirza, the learned Representative for the respondent-Company, under the directions of this Court has filed a statement of substituted holidays in the respondent company from 1974 to 1978.
Alongwith the statement, which is only in respect of substituted holidays in lieu of public holidays and not other holidays declared by the Company, Mr. Masood Mirza has filed Gazette copies of the orders of the Government declaring substituted holidays. An examination of the 2 statements makes it clear that when--ever a holiday fell on a weekly holiday, whether it was a public holiday or other holiday declared by the Company, the company invariably gave a substituted holiday; the sole exception being the holiday falling on 23rd March, 1979, in respect of which the appellant union has filed the apple--cation out of which the instant appeal has arisen. The contention of Mr. Masood Mirza was, and this was also the respondent Company's contention even before the learned Labour Court, that the company gave a substituted holiday only when the Government itself declared a substituted holiday and since the Government had not declared a substituted holiday in respect of the holiday failing on 23rd March, 1979, the Company in accordance with its practice, did not declare a substituted holiday. This contention, which found favour with the learned Labour Court, overlooks 2 important facts. The first is that though the Government did not declare a substituted holiday in respect of 27th of Ramazanul Mubarak, which fell on Friday, the 2nd September, 1979, the company gave a substituted holiday on 1st September 1979. The second circum, stance is that additional holidays declared by the company are somewhat different and in any case substantially more than the public holidays de--clared by the Government. In case of these extra holidays, whenever they happened to fall on weekly holidays, the company in every case declared a substituted holiday. I find it difficult to accept the proposition that whereas in the case of the additional holidays declared by the Company, it always allowed substituted holidays but in the case of the more important public holidays declared by the Government, it followed the practice of the Government and allowed a substituted holiday only when the Government itself allowed a substituted holiday. In any case, there appears to be no tangible evidence in support of this contention. No instance had been pointed out, except the disputed case relating to 23rd of March, 1979, where the Company did not grant a substituted holiday in' lieu of a public holiday or other holiday declared by it which fell on a weekly holiday. On the other hand, though the Government did not allow a substituted holiday for 27th of Ramazanul Mubarak, of 1978, the Company allowed a substituted holiday. Mr. Masud Mirza tried to get over this important circumstance by asserting that this substituted holiday was given in accordance with the settlement, dated 2nd April, 1978, between the appellant-Union and the respondent Company, but a perusal of the settlement in question does not appear to support the contention of Mr. Masood Mirza. That settlement merely provides that the Manage--ment has agreed to substitute `festival holiday of Jummarut Widda for that of 27th of Ramazanul Mubarak. In other words, instead of giving a holiday for Jummatul Wida, the company would be giving a holiday for 27th of Ramazanul Mubarak. This is quite different from the position taken by Mr. Mirza that in case 27th of Ramazanul Mubarek fell on a weekly holiday a substituted holiday would be given. In fact the settlement does not refer to the practice of substituted holidays in lieu of the holidays falling on weekly holidays. I am accordingly of opinion that the learned Labour Court has erred in holding that the respondent management was not bound to give substituted holiday in lieu of 23 March, 1979, because the Government had not notified any substituted holiday.
3. The upshot of the above discussion is that I would set aside the impugned order of the learned Labour Court, allow the appeal and direct the respondent Management to give a substituted holiday in lieu of the 23rd of March, 1979, in accordance with the custom prevailing in the e Company.rd